Jaber v Rockdale City Council

Court of Appeal (NSW)|2008-08-26|Before: Tobias JA, Campbell JA

Appeal Outcome: Special leave refused with costs by the High Court - 26 August 2008

CITATION: Jaber v Rockdale City Council [2008] NSWCA 98

JUDGMENT OF: Tobias JA at 1; Campbell JA at 59; Handley AJA at 60

LEGISLATION CITED: Civil Liability Act 2002 (NSW) s 5F, s 5H, s 5K and s 5L Evidence Act 1995 (NSW) s 135

Carey v Lake Macquarie City Council (2007) Aust Torts Reports 81-874; [2007] NSWCA 4 Falvo v Australian Oztag Sports Association (2006) Aust Torts Reports 81-831; [2006] NSWCA 17 Lormine Pty Ltd v Xuereb [2006] NSWCA 200 CASES CITED: Port Stephens Council v Theodorakakis [2006] NSWCA 70 Roads & Traffic Authority NSW v Dederer [2006] NSWCA 101 Vairy v Wyong Shire Council (2005) 223 CLR 422 Wyong Shire Council v Shirt (1980) 146 CLR 40 Wyong Shire Council v Vairy [2004] NSWCA 247

PARTIES: Bilal Jaber Rockdale City Council

COUNSEL: A: S Norton R: J Stewart

SOLICITORS: A: McCulloch & Buggy, Sydney R: L J Sharpe & Co Lawyers, Rockdale

LOWER COURT DATE OF DECISION: 13 June 2007; 14 June 2007; 15 June 2007

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40411/07 DC 4725/06

TOBIAS JA CAMPBELL JA HANDLEY AJA

Wednesday 28 May 2008 BILAL JABER v ROCKDALE CITY COUNCIL Judgment 1 TOBIAS JA: On 5 October 2003 the appellant, Bilal Jaber, then 19 years old, dived headfirst from a pylon or bollard located on a wharf at Dolls Point under the care, control and management of the respondent, Rockdale City Council (the Council). As a result of the dive, the appellant struck his head on the seabed, sustaining significant injuries to his cervical spine. 2 The appellant sued the Council for negligence, alleging that it was in breach of its duty of care, relevantly, in failing to adequately warn persons such as the appellant that it was dangerous to dive from the wharf. 3 The proceedings were heard on 18 June 2007 by his Honour Judge Robison who rejected the appellant's claim and entered a verdict and judgment for the Council. It is from that decision that the appellant appeals to this Court.

The background facts 4 Between the ages of 15 and 19 years the appellant had attended the area where the accident occurred on approximately six occasions for family picnics. On each occasion he had observed people diving from the wharf. However the day of the accident was the first occasion that he actually ventured on to the wharf, let alone dived from it. 5 It was not in contest that the wharf was under the care, control and management of the Council. The wharf itself is located at the end of a concrete pier, which commences on the adjoining beach and extends out into the bay. The wharf forms a "T" at the end of the pier. There are two sets of wooden steps leading down from the concrete deck of the wharf to the water below. Each set of steps commences at what might be referred to as the top right hand corner of the wharf deck when viewed from the pier. One set of steps extends down the right hand side of the wharf in the direction of the beach. The other set of steps extends parallel to the long side of the wharf being the top of the "T". It is that set of steps which is presently relevant. Located on the outside of those steps are four white painted bollards, intended no doubt to provide protection to the steps from a berthing vessel. One of those bollards was located at the top of the steps and was the bollard from which the appellant dived. 6 At the entrance to the wharf, being the point where the wharf and pier meet, and facing the shore was a single pictorial sign indicating that diving from the wharf was prohibited. However, that sign was not visible to people approaching the wharf by swimming from the beach (as did the appellant) and gaining access to the wharf deck via the steps. 7 On the day of the accident, and after playing soccer for a time, the appellant decided to go for a swim. He entered the water from the beach with the pier approximately six metres to his right. He swam out towards the end of the pier and observed people diving from the wharf. Having decided to dive from the wharf himself, he swam around the end beyond the extremity of the wharf and approached the steps. After gaining access to the lower steps, he ascended the steps, climbed onto the bollard at the top of the steps and dived head first into the water, striking his head on the seabed. He sustained a three-column fracture through the C5 vertebrae with minimal displacement and a burst fracture of C7 with posterior displacement of the bony fragment into the vertebrae foramen. 8 The primary judge found that the appellant dived into the water from a height of two to three metres above its surface and that the depth of the water into which he dived was such that when he stood up after striking the bottom, his head and shoulders were above the surface of the water. His Honour also found that at the time the accident occurred (sometime before 1.30pm) the tide was neither at its highest nor lowest point. 9 The primary judge also found that the appellant: (a) trod water from time to time as he swam towards the steps for the purpose of ascertaining the depth of the water and that he did so before he climbed on to the steps;

(b) was mindful that a sufficient depth of water was needed before he could commence diving;

(c) was aware of the potential danger of not being certain that the depth of water was sufficient to enable him to dive safely;

(d) did not know the exact depth of water into which he was diving;

(e) knew that if he hit his head on the bottom, he could be very badly injured, killed or confined to a wheelchair; and

(f) had turned his mind to those dangers at the time. 10 The appellant gave evidence that when standing on top of the bollard prior to diving, the colour of the water was "very dark". In cross-examination he said that although the water was shallow when he entered it from the beach, after about two metres it "drops very deep". When it was suggested to him that when he dived off the top of the bollard he had no idea of the depth of the water into which he was diving, he responded: "I did because I was treading water there before and I dived in that same spot and I couldn't touch the ground." 11 A little further in his cross-examination, when it was suggested to him that the area into which he dived was not the same as where he had been treading water, the appellant responded: "I treaded water where I was diving and it was deep enough like it was - if you can tell by the colour as well that (sic)." 12 The primary judge also found that there was nothing in the appellant's evidence indicating that he had observed anyone diving from the top of a bollard on the wharf. This finding was challenged by the appellant on the basis that it was inconsistent with the following exchange: "Q. On the earlier occasions you were there did you notice from time to time people engage in any activity from these white posts on the wharf? A. Yes. Q. What did you see happening? A. I seen - every time I went to that Dolls Point place, people were just diving off the wharf. Young people, old." 13 Again, "Q. Well you've told me on previous occasions you'd seen people diving off the posts? A. People diving. Yep. Q. Was that going on on this occasion? A. Yep." 14 It is fair to say that in the first exchange referred to above, it appears that the appellant was not prepared to adopt the suggestion that he observed other people diving from the bollards as distinct from the deck of the wharf. However, when taken with the second exchange, it seems in all probability that the appellant was not distinguishing between people diving from the bollards and diving from the wharf. At the end of the day I do not think that, if there was an error in this respect, it is of any consequence. 15 The primary judge noted that it was quite possible that the appellant did not land in precisely the same location where he had been treading water, notwithstanding that the appellant said that he had. Again, I do not think that this matters for it cannot be gainsaid that treading water is not an accurate method of determining the precise depth of water for the purpose of safely diving head first at an angle of 45° from a height of two to three metres above the water's surface. One can accept for present purposes that the appellant believed that the water was deep enough for him to dive into. If he had thought otherwise, no doubt he would have desisted. 16 The problems the appellant face are first, he was unaware of the precise depth of the water into which he was diving and, second, he was fully aware of the fact that, if it was not deep enough, he could sustain serious injuries.

The Council's defence 17 In para 6 of its Defence the Council denied that it was guilty of negligence as alleged in the particulars provided in the Statement of Claim or at all. Paragraph 7 of the Defence was, relevantly, in the following terms: "Further and in the alternative, the Defendant avers the injury, loss and damage suffered and complained of by the Plaintiff in his Statement of Claim occurred wholly or in part as a result of the Plaintiff's own fault or contributory negligence. PARTICULARS OF NEGLIGENCE AND/OR CONTRIBUTORY NEGLIGENCE (a) … (b) … (c) Failing to avoid an obvious hazard; (d) Exposing himself to a risk of injury which could have been avoided by the exercise of reasonable care on his part. (e) Failing to check the depth of the water into which he intended diving, before diving. (f) Exposing himself to an obvious risk. (g) Exposing himself to an inherent risk. (h) Engaging in a dangerous recreational activity." 18 At trial the Council relied upon the provisions of Div 4 (Assumption of Risk) and Div 5 (Recreational Activities) of Pt 1A of the Civil Liability Act 2002 (NSW) (the CL Act). The relevant provisions of Div 4 are as follows: " 5F Meaning of "obvious risk" (1) For the purposes of this Division, an obvious risk to a person who suffers harm is a risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person. (2) Obvious risks include risks that are patent or a matter of common knowledge. (3) A risk of something occurring can be an obvious risk even though it has a low probability of occurring. (4) A risk can be an obvious risk even if the risk (or a condition or circumstance that gives rise to the risk) is not prominent, conspicuous or physically observable. 5G Injured persons presumed to be aware of obvious risks (1) In determining liability for negligence, a person who suffers harm is presumed to have been aware of the risk of harm if it was an obvious risk, unless the person proves on the balance of probabilities that he or she was not aware of the risk. (2) For the purposes of this section, a person is aware of a risk if the person is aware of the type or kind of risk, even if the person is not aware of the precise nature, extent or manner of occurrence of the risk. 5H No proactive duty to warn of obvious risk (1) A person ( the defendant ) does not owe a duty of care to another person ( the plaintiff ) to warn of an obvious risk to the plaintiff. …"

19 The relevant provisions of Div 5 are: " 5J Application of Division (1) This Division applies only in respect of liability in negligence for harm to a person ( the plaintiff ) resulting from a recreational activity engaged in by the plaintiff. (2) This Division does not limit the operation of Division 4 in respect of a recreational activity. 5K Definitions In this Division: dangerous recreational activity means a recreational activity that involves a significant risk of physical harm. obvious risk has the same meaning as it has in Division 4. recreational activity includes: (a) any sport (whether or not the sport is an organised activity), and (b) any pursuit or activity engaged in for enjoyment, relaxation or leisure, and (c) any pursuit or activity engaged in at a place (such as a beach, park or other public open space) where people ordinarily engage in sport or in any pursuit or activity for enjoyment, relaxation or leisure. 5L No liability for harm suffered from obvious risks of dangerous recreational activities (1) A person ( the defendant ) is not liable in negligence for harm suffered by another person ( the plaintiff ) as a result of the materialisation of an obvious risk of a dangerous recreational activity engaged in by the plaintiff. (2) This section applies whether or not the plaintiff was aware of the risk." 20 Objection was taken by the appellant at the commencement of the trial to the Council relying upon the provisions of Div 4 and 5 of Pt 1A of the CL Act upon the basis that those provisions had not been specifically pleaded. Reliance was placed upon r 14.14 of the Uniform Civil Procedure Rules (the Rules). It can be accepted, as the appellant submitted, that the purpose of that rule, which requires a defendant to specifically plead "any matter that the party alleges makes any claim … not maintainable … or that raises matter of fact not arising out of" the statement of claim, is to ensure that no question of procedural unfairness arises as a consequence of a party, in the present case the appellant, being taken by surprise: Port Stephens Council v Theodorakakis [2006] NSWCA 70 at [15] and [16]. 21 Accordingly, the Council in seeking to rely on the provisions of Div 4 and 5 of Pt 1A of the CL Act should have indicated its reliance thereon "fully and clearly in its pleading". But the real issue is one of procedural unfairness. It was not suggested that the failure of the Council to plead the statutory provisions was the cause of any prejudice or unfairness to the appellant in terms of his conduct of the case at trial. Paragraph 7 of the Defence expressly pleaded, albeit as particulars of contributory negligence, that the appellant exposed himself to an obvious risk and to an inherent risk and engaged in a dangerous recreational activity. Each of those allegations purports to engage the relevant provisions of Divs 4 and 5. 22 It was in the foregoing circumstances that the primary judge rejected the appellant's application that the Council ought not to be entitled to rely on those provisions. In my opinion he was correct to do so.

The decision of the primary judge 23 Having found the facts to which I have referred, the primary judge then turned to the issue of liability and, in particular, the defences raised by the Council's reliance upon the provisions of Divs 4 and 5 of Pt 1A of the CL Act. 24 It was common ground that the appellant was engaged in a "recreational activity" as defined in s 5K. The critical issues which therefore arose under the statutory provisions were, first, whether the appellant's activities involved an "obvious risk" being a risk of harm that, in the circumstances, would have been obvious to a reasonable person in the appellant's position and, second, whether the appellant's activity was a "dangerous recreational activity" as defined in s 5K being one that involved a significant risk of physical harm. 25 After citing from the decision of this Court in Roads & Traffic Authority NSW v Dederer [2006] NSWCA 101 and from that of the High Court in Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422, the primary judge said (at Red 83-84): "Diving per se, absent diving from a wharf or rocks or bridges is not necessarily a dangerous recreational activity. But diving from a wharf with the proximity of that wharf, or more correctly the post on that wharf to the surrounding sand which effectively is the beach, is an entirely different matter in my view... … The cases refer to a number of activities which could be classified a dangerous activity or not. But when one looks at this case in the context of the plaintiff undertaking the specific diving manoeuvre that he did from a wharf which jutted out from a breach, one can only form one conclusion, adopting the objective test in [ Fallas v Mourlas [2006] NSWCA 32; (2006) 65 NSWLR 418] and other authorities that this indeed was a dangerous recreational activity. In my view no other view can be entertained." 26 His Honour then continued (at Red 86): "It is quite clear to me that the injury, loss and damage which was sustained and complained of by the plaintiff, occurred wholly as a result of his own fault. He failed to take any reasonable care for his own safety. He certainly failed to keep a proper lookout. This was an obvious hazard. Clearly when one looks at the photographic evidence relied upon by the plaintiff himself in his case, there can only be one conclusion drawn from that. That is, that it was far too close to the sand, the plaintiff exposed himself to that, he failed to avoid it and came to grief. Whilst there was some check of the depth of the water, clearly it was an insufficient check of the depth of the water. He exposed himself to an obvious risk and an inherent risk and indeed in the circumstances before me, this was a plaintiff engaged in a dangerous recreational activity."

The appellant's challenges to the findings of the primary judge 27 It was common ground that the question of obvious risk involves the determination of whether the appellant's conduct involved a risk of harm which would have been obvious to a reasonable person in his position: Carey v Lake Macquarie City Council (2007) Aust Torts Reports 81-874; [2007] NSWCA 4 at [93]. 28 The test is an objective one and thus must take account of the objective circumstances of the person whose conduct is being assessed. In the present case it was submitted that the following factors relating to the appellant were required to be taken into consideration: (a) his relative youth; (b) his inexperience in diving and that on the day in question, this was the first occasion that he had ventured onto the wharf; (c) his observations as to the size of the wharf; (d) the apparent purpose of the wharf being to allow water craft, including substantial vessels, to berth there; (e) the end of the wharf being further into the bay than the nearby swimming enclosure where diving was permitted subject to depth; (f) that on the day of the accident the appellant observed that the water deepened considerably approximately two metres from the shore; (g) that on the six or so occasions he attended the area, including the day of the accident, the appellant observed people diving from the wharf; (h) that he had observed people fishing from the wharf; (i) that when he swam towards the wharf he did not feel anything solid beneath him when he stopped to tread water from time to time; (j) that he dived into the area where he had been treading water [or at least believed that he did]; (k) that the water was dark in colour and he could not see anything below the surface when standing on the bollard so that he thought it was deep enough to dive into without hitting his head on the bottom; (l) that he dived from a height of only two to three metres above the surface; (m) that he dived with both hands in front of his head; (n) that there was no sign visible to the appellant prohibiting diving or, more importantly, warning of the risk of diving; (o) that the wharf was intended for use by vessels which would suggest that there was a uniform depth where berthing of vessels was contemplated. 29 It was submitted that in view of the matters so listed the risk of harm could not be said to be "obvious" to a reasonable person in the position of the appellant and that diving into water can be and is often achieved without resulting in any injury (as the primary judge recognised) and this was so in the present case where the appellant was only diving from a height of two to three metres above the surface of the water. Although the appellant knew in a general sense that diving into shallow water or water of uncertain depth might result in injury so that it could be said that he had an awareness of the "potential" for "danger", that fact of its own, so it was submitted, did not establish that the risk of that potential for danger materialising was obvious. 30 The appellant believed that the water was deep enough as he had tested its depth by treading water and had not touched the bottom. He therefore thought that it was safe to dive. The present was not a case where the appellant had ignored the prevailing conditions or had given no consideration to the presence of risk. In these circumstances, it was submitted his conduct was that of a reasonable person in his position. 31 The decision of this Court and, for that matter, that of the High Court, in Dederer is of no assistance in resolving the issues in this appeal if only for the reason that that case was not concerned with the provisions of the CL Act. The same observation applies to the decision of the High Court in Vairy. In that case some members of the High Court considered that obviousness of risk was relevant only to the issue of contributory negligence and could rarely be relevant to the discharge of a defendant's duty of care: see per McHugh J at 438 [46]; and per Hayne J at 469 [162]. 32 However, obviousness of risk is of critical significance where, as in the present case, the appellant accepted that he could only succeed by establishing that the Council was in breach of its duty of care by failing to provide a sign visible to those who approached the wharf from the water as had the appellant and warning that diving from the wharf was dangerous. In other words, the appellant accepted that this was a "duty to warn" case so that if the relevant risk was an "obvious risk" the effect of s 5H(1) was that the appellant would fail. 33 In Vairy at 469 [162], Hayne J observed that reference to a risk being "obvious" was apt to mislead and could not be used as a concept determinative of questions of breach of duty, not least because obviousness of risk might divert attention from, on the one hand, what would have been the reasonable response to a foreseeable risk to, on the other, a consideration of how someone other than the plaintiff could have avoided injury. Thus McHugh J considered such questions relevant only to contributory negligence. 34 Hayne J did not deny the importance of considering the probability of occurrence of the risk in question. He said at 470 [163]: "The probability of occurrence of a risk that is not apparent on casual observation of a locality or of a set of circumstances may be higher than the probability of occurrence of a risk that is readily apparent to even the casual observer. But the focus of enquiry must remain upon the putative tortfeasor, not upon the person who has been injured, and not upon others who may avoid injury." 35 However, under s 5F(1) of the CL Act, the focus of the enquiry is not upon the putative tortfeasor but upon the person who has been injured or, more accurately, a reasonable person in his position. Whether or not a risk is "obvious" may well depend upon the extent to which the probability of its occurrence is or is not readily apparent to the reasonable person in the position of the plaintiff. Thus, in this Court in Vairy (see Wyong Shire Council v Vairy [2004] NSWCA 247) at [161], with the agreement of Mason P, I adopted the following definition of "obvious", found in the commentary to [343A] of the Restatement (Second) of Torts (1965) (Rest 2d Torts ¶343A): "'Obvious' means that both the condition and the risk are apparent to and would be recognised by a reasonable man, in the position of the [plaintiff], exercising ordinary perception, intelligence, and judgment."

See also Fallas at 434 [100]. 36 I continued (at [162]): "In this definition 'condition' refers to the factual scenario facing the plaintiff. Thus in a diving case the condition might typically be the fact that the plaintiff is faced with water of unknown depth. Under such a condition the risk would be that diving into the water (while the depth remains unknown) might result in (serious) injury. This risk would be considered obvious if, in the context of the case, it was perceptible to a reasonable person in the position of the plaintiff that if you do not know the depth of a body of water into which you are about to dive, then to dive into such water under such conditions inevitably brings with it the risk of injury." 37 As Hayne J observed in Vairy in the High Court (at 464 [133]), because the water could be too shallow, there was a risk of injury. In the present case the appellant himself recognised that if the depth of water into which he proposed to dive was insufficient, there was a high probability that he would be seriously injured. This is apparent from the following exchange: "Q. When you dived into this water, you didn't know what depth it was, did you? A. Not exactly. Q. And you knew when you dived in, not knowing exactly the depth, that you could become very badly injured if you hit your head on the bottom, didn't you? A. I thought it was deep enough but. Q. You knew that if you hit your head on the bottom you could be very badly injured, didn't you? A. Well I didn't think that I'm going to hit my head at the bottom. Q. You knew that if you hit your head on the bottom? A. Yes. Q. You could be very badly injured? A. Yes. Q. Perhaps even killed? A. Yes. Q. End up in a wheelchair? A. Yes." 38 The appellant accepted that he knew in a general sense that diving into shallow water or water of uncertain depth might result in injury and so was aware of what the primary judge referred to as "the potential for danger". It was that "potential for danger" that constituted the relevant risk. It was, on the appellant's own evidence, one that was apparent to him. If so, it was also readily apparent to a reasonable person in his position. It matters not that it had a low probability of occurring: s 5F(3). 39 The fact that the appellant believed that the water was deep enough, because he had purported to check its depth by treading water, does not militate against a finding on the objective facts that there was an "obvious risk" that would be readily apparent to a reasonable person in the appellant's position. A reasonable person in the position of the appellant, wishing to dive head first from the top of a bollard, two to three metres above the surface level of the water, would not regard that method, if it be such, as a reasonable substitute for testing the depth by the more reliable means of "duck diving" or by jumping feet first. 40 Accordingly, in my view the primary judge was correct to find that the relevant risk of harm to which the appellant was exposed was one which was an "obvious risk" within the meaning of s 5F(1) of the CL Act. By virtue of s 5H(1) it follows that the Council did not owe a duty of care to the appellant to warn him of that risk. For this reason alone the appeal must fail. 41 The appellant also challenged the primary judge's finding that the recreational activity undertaken by the appellant was a "dangerous recreational activity" within the meaning of s 5K of the CL Act, in that it involved a significant risk of physical harm. That it involved a risk of such harm is clear. As Hayne J observed in Vairy in a passage to which I have already referred, "because the water could be too shallow, there was a risk of injury". The question was whether that risk was significant. The primary judge held that it was and I agree with that conclusion. 42 The appellant nevertheless submitted that the risk of physical injury, although present, was not "significant" as the appellant dived only from a height of two to three metres into water which he believed, on the basis of observation and by treading water in the vicinity of the dive, to be of sufficient depth to safely accommodate his dive. The fact that he was wrong did not transform the risk into one which was "significant". Reliance was placed upon the following passage from the judgment of Mason P, with whom McColl JA and Hunt AJA agreed, in Lormine Pty Ltd v Xuereb [2006] NSWCA 200 at [31]: "The defendant bears the burden of establishing a defence under s 5L. The question is to be determined objectively and prospectively. The standard lies somewhere between a trivial risk and one that is likely to occur. Significance is to be informed by the elements of both risk and physical harm. The characterisation must take place in a particular context in which the plaintiff places himself or herself." 43 In Vairy, Gleeson CJ and Kirby J said at 426 [5]: "Swimming is a popular recreational activity along the Australian coast. It involves certain risks and sometimes results in injury, or even death. The level of risk varies according to the locality, the conditions at any given time, and the capabilities of the swimmers. Short of prohibiting swimming altogether, public authorities cannot eliminate risk. A general prohibition in a given locality may be a gross and inappropriate interference with the public's right to enjoy healthy recreation. Swimmers often enter the water by diving, or plunging head-first. This, also, is risky. Diving into water that is too shallow, or diving too deeply into water in which only a shallow dive is safe, can have catastrophic results." 44 At 428 [10] their Honours also observed: "In addressing the central question of fact in this particular case, we do not find it helpful to characterise the danger confronting the appellant at the level of diving into water of unknown depth. Such a practice, described in that general fashion, is always risky. There are, however, degrees of risk, and some risk of that kind exists every time a swimmer enters water headfirst without knowing exactly how deep it is. Even if the swimmer knows the depth of water exactly, there are few people who could calculate with any accuracy the risk involved in diving or plunging into it. Most people who plunge headfirst into the surf are taking some degree of risk and, if the risk materialises, the consequences may be devastating." 45 The foregoing passages contain observations made in the context of whether the Council in that case was in breach of its duty of care in failing to warn Mr Vairy of the risk of diving off the rocks. The question with which I am currently concerned in the present case is different. But the passages to which I have referred make clear that anyone who dives headfirst into waters of unknown depth is taking some degree of risk that they will sustain physical harm. Furthermore, the consequences of the risk materialising may be devastating. 46 Thus in Falvo v Australian Oztag Sports Association (2006) Aust Torts Reports 81-831; [2006] NSWCA 17 Ipp JA, with the agreement of Hunt AJA and Adams J, set out the principles as to how an activity is to be characterised to determine if it is a "dangerous recreational activity" in the following terms: "28 In my view, the definition of 'dangerous recreational activity' in s 5K has to be read as a whole. This requires due weight to be given to the word 'dangerous'. It also requires 'significant' to be construed as bearing not only on 'risk' but on the phrase 'physical harm' as well. The expression 'significant risk of physical harm' is coloured by the word 'dangerous' and the phrase 'significant risk' cannot properly be understood without regard being had to the nature and degree of harm that might be suffered, as well as to the likelihood of the risk materialising. 29 The view that a risk is 'significant' when it is dependant on the materiality of the consequences to the person harmed is consistent with the views expressed by the High Court in Rogers v Whitaker (1992) 175 CLR 479 at 490. 30 Thus, in my opinion, the expression should not be construed, for example, as capable of applying to an activity involving a significant risk of sustaining insignificant physical harm (such as, say, a sprained ankle or a minor scratch to the leg). It is difficult to see how a recreational activity could fairly be regarded as dangerous where there is no more than a significant risk of an insignificant injury. 31 In substance, it seems to me, that the expression constitutes one concept with the risk and the harm mutually informing each other. On this basis the 'risk of physical harm' may be 'significant' if the risk is low but the potential harm is catastrophic. The 'risk of physical harm' may also be 'significant' if the likelihood of both the occurrence and the harm is more than trivial. On the other hand, the 'risk of physical harm' may not be 'significant' if, despite the potentially catastrophic nature of the harm the risk is very slight. It will be a matter of judgment in each individual case whether a particular recreational activity is 'dangerous'." 47 In Fallas Ipp JA, with my concurrence, in a judgment delivered two weeks after his judgment in Falvo, further explained the concept of a "significant risk of physical harm" as follows (at 422): "13 I agree with Basten JA that an objective test is required in determining whether in terms of s 5K a recreational activity is 'dangerous'. 14 But what does 'significant' mean in s 5K? I think it is plain that it means more than trivial and does not import an 'undemanding' test of foreseeability as laid down in Wyong Shire Council v Shirt (1980) 146 CLR 40. 15 The epithet 'real' was suggested during the course of argument. But 'real' can mean a risk that is not far-fetched or fanciful ( Wyong Shire Council v Shirt at (48)) and 'significant' means more than that. 16 On the other hand, it seems to me, a 'significant risk' does not mean a risk that is likely to occur; that would assign to it too high a degree of probability. Had it been the legislature's intention to lay down an element for the application of s 5L involving the probability of harm occurring, different words would have been used. 17 In the present context, the word 'significant' - coloured or informed as it is by the elements of both risk (which it expressly qualifies) and physical harm (which is indivisibly part of the expression under consideration) - is not susceptible to more precise definition. 18 Thus, I do not think it practicable or desirable to attempt to impose further definition on 'significant', other than saying that the term lays down a standard lying somewhere between a trivial risk and a risk likely to materialise. Where the particular standard lies between these two extremes cannot be prescribed by any rule of thumb. Each individual case will have to depend on its particular circumstances and by having regard to the ordinary meaning of the term." 48 His Honour further emphasised (at 426 [113]) that in order to avoid potential situations of unfairness and injustice, it was appropriate, for the purpose of s 5K, to determine the scope of the recreational activity: "… by reference to the particular activities actually engaged in by the plaintiff at the relevant time. This would enable a decision to be made by reference to the actual circumstances giving rise to the harm, and not to a notional and artificial construct that bears little relationship to the reality of the case and to what actually occurred." 49 In Fallas Basten JA observed (at 443 [144]) that there were three ways of considering whether the risk of harm was significant of which the first and third are presently relevant. The first was to assume that any risk would be significant because the results of it eventuating were likely to be catastrophic. The third was to look at the particular circumstances of the case. His Honour rejected the first approach (at 443 [145]) as it could result in the phrase "significant risk of physical harm" not being satisfied where the risk was miniscule albeit the harm very serious. 50 Like Ipp and Basten JJA, I also preferred the third approach. I said (at 432): "90 … If, as I believe to be the case, the word " significant " in the context of the subject definition means a risk which is not merely trivial but, generally speaking, one which has a real chance of materialising, then the subject activity was clearly capable of involving a significant risk of physical harm. This is consistent with the third approach referred to by Basten JA in [144] of his judgment and which I would respectfully adopt as the correct approach to a case of the present kind. …

91 I am conscious of the observations of Ipp JA in [18] of his judgment that " significant " means a standard somewhere between a trivial risk and a risk likely to materialise. A real chance of the risk materialising lies somewhere between these two standards although probably closer to the second than the first. I accept that there is merit in not seeking to define the term with precision, as its application requires a normative judgment in light of the particular facts and circumstances of each case. However, I see no danger in adopting as no more than a general guide that the risk should have a real chance of materialising for it to qualify as significant. But I emphasise that such a standard, which as I have said lies between the extremes articulated by Ipp JA, is to be regarded as what it is - no more than a general guide. 92 It will thus be appreciated that I prefer the approach of Ipp JA that, for the purposes of the definition of " dangerous recreational activity " in s5K, the scope of the relevant activity must be determined by reference to the particular activities engaged in by the respondent at the relevant time being the period immediately prior to the respondent suffering the relevant harm as a consequence of the appellant's negligence. In other words, as his Honour notes at [43], [46] and [47] of his judgment, in determining whether the relevant recreational activity involves a significant risk of physical harm, one must identify that activity at a relatively detailed level of abstraction by including not only the particular conduct actually engaged in by the respondent but also the circumstances which provide the context in which that conduct occurs." 51 The statement of Mason P in Lormine referred to in [42] above is derived from the foregoing paragraphs from the judgments of Ipp JA in Falvo and Fallas. 52 The relevant standard lies somewhere between a trivial risk and one that is likely to occur. Importantly, 'significance' is to be informed by the elements of both risk and physical harm. The context in which the appellant found himself was that he was diving into water from the top of a bollard that was two to three metres above the surface of the water. True it is that he had observed other persons diving from the wharf but there was no evidence that he had observed them diving from the particular bollard from which he himself dived or in the direction that he dived. 53 In the present case, it could not be said that the risk of physical harm was in the circumstances trivial; nor was it one which would inevitably eventuate although in my view there was a real chance of the risk materialising if, as was the case, the appellant was to misjudge the depth of the water. Furthermore, the nature of the physical harm that could be sustained if the risk materialised was acknowledged by the appellant to be extremely serious: in fact, catastrophic. 54 The factors to which I have referred in [28] above and relied upon by the appellant do not lead to any different conclusion, leaving aside those factors which are, by their nature subjective, all of them point to the risk of the appellant sustaining physical harm by diving from an enhanced height into water of unknown depth as being significant. The chance of the risk of physical harm materialising was real. 55 In my view the primary judge was correct to characterise the appellant's activity as a "dangerous recreational activity" within the meaning of s 5K of the CL Act. As his injuries were a result of the materialisation of what was an obvious risk of a dangerous recreational activity engaged in by him, it follows that by virtue of the provisions of s 5L(1) of the CL Act, the Council is not liable in negligence for the appellant's injuries. On this further ground, the appeal fails.

One further issue - the DVD 56 A number of other issues were canvassed during the course of the hearing, including the use made by the primary judge of surveillance footage of the appellant, transferred onto DVD, relating to his post injury activities. In my view his Honour's use of the DVD was not relevant to either of the two issues of liability which I have canvassed above. Accordingly, it is unnecessary for me to deal with it. However, I would wish to make it clear that, had it been necessary, I would have upheld the appellant's submission that his Honour erred in permitting the appellant, during the course of cross-examination, to be shown the DVD, thereby allowing evidence concerning its contents to be elicited in circumstances where ultimately, when it was sought to tender the DVD, his Honour excluded it pursuant to s 135(a) of the Evidence Act 1995 (NSW). In my view his Honour ought not to have permitted the DVD to be utilised at all.

Conclusion 57 For the foregoing reasons in my opinion the primary judge was correct to find that the Council was not liable to the appellant for his injuries by virtue of the provisions of ss 5H(1) and 5L(1) of the CL Act. The consequence of the first of those provisions is that the Council had no duty to warn the appellant of what was an obvious risk. Due to the second, the Council was not liable in negligence for the injuries suffered by the appellant as a result of the materialisation of that risk in respect of a recreational activity that involved a significant risk of physical harm. 58 I would therefore propose that the appeal be dismissed with costs. 59 CAMPBELL JA: I agree with Tobias JA. 60 HANDLEY AJA: I agree with Tobias JA that the appellant's claim failed because of the relevant sections of the Civil Liability Act. However, in my judgment the claim also failed under the general law. The Council had no duty to warn the appellant of a diving risk and had not invited or encouraged the appellant to dive head first off the bollards. **********

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

At a glance

Court

Decision date

Before

Source

Judgment (28 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (12)

Cited By (33)